Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, 20554 the Matter
Restoring Internet Freedom Docket No. 17-108
COMMENTS
JUDICIAL WATCH, INC. AND
THE ALLIED EDUCATIONAL FOUNDATION
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
202-646-5172
Counsel for Judicial Watch, Inc. and the
Allied Educational Foundation
July 17, 2017
TABLE CONTENTS
Interests the Commenters ............................................................................................................1
Summary Argument ....................................................................................................................3
Argument .........................................................................................................................................5 Classifying Broadband Internet Public Utility Telephone Service Regulatory
and Public Policy Disaster .........................................................................................................5 The FCC Public Utility Regulations Risk Enormous Harm the Internet ............................7 The Prioritization Ban Will Slow Infrastructure Investment and Raise
Consumer Costs ...................................................................................................................8 The Internet Conduct Standard for Network Management Will Undermine
Innovation the Network Core, Which Turn Will Thwart Innovation the Edge .....10 New Regulations are Unnecessary, but Minimum Only Limited, Light-Touch Net
Neutrality Rules Should Even Considered ..........................................................................11
Conclusion .....................................................................................................................................16
Interests the Commenters
Judicial Watch, Inc.1 and the Allied Educational Foundation2 (the commenters are
broadly concerned that the current net neutrality regulations will degrade the functioning
communications platform that provides tremendous civic and economic benefits those who
use it. bonus, the regulations will also destroy enormous amounts national wealth
matter equal concern the commenters. The FCC adoption the net neutrality regulations
was politically-corrupted decision3 which will far more increase the wealth
Washington power-brokers and lobbyists than will protect consumers. The FCC
independent regulatory agency designated Congress apply expert industry and technical
knowledge ensure the smooth function communications markets nonpartisan way. But
the prior Commission ignored its own expert opinion that heavy regulations would harm the
internet,4 and did appease the former President agenda for battling the opposition party
Judicial Watch, Inc. Judicial Watch nonpartisan 501(c)(3) educational foundation that seeks promote
transparency, integrity, and accountability government and fidelity the rule law. Judicial Watch regularly
files briefs and prosecutes litigation advance its public interest mission matters believes are public
importance.
The Allied Educational Foundation AEF 501(c)(3) nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverse areas study.
AEF regularly files briefs various legal proceedings advance its purpose.
Dissenting Statement [then] Commissioner Ajit Pai, Protecting and Promoting the Open Internet, FCC
Rcd. 5601 (2015) [The net neutrality order] not only radical departure from the bipartisan, market-oriented
policies that have served well for the last two decades. also about-face from the proposals the FCC
made just last May. why the FCC changing course?... because now have evidence that the Internet
not open? No. because have discovered some problem with our prior interpretation the law? No. are
flip-flopping for one reason and one reason alone. President Obama told so... This isn how the FCC should
operate. should independent agency making decisions transparent manner based the law and the
facts the record. shouldn rubber stamp for political decisions made the White House.
Gautham Nagesh and Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, Wall Street
Journal (Feb. 2015) People familiar with [former FCC Chairman Wheeler thinking say didnt want
regulate broadband companies the same way that phone companies are regulated. Mr. Wheeler also wanted
leave some room for broadband providers explore new business models, including accepting payments from
content providers. That could allow broadband companies offer free cheap services. available
https://www.wsj.com/articles/how-white-house-thwarted-fcc-chief-on-internet-rules-1423097522.
while cementing his legacy via regulatory accomplishment. These net neutrality rules are farleft, base-appeasing federal power grab. The regulations written are certain increase the
amount rent-seeking behavior already present usually smoothly functioning industry.6
industry players position themselves curry favor with federal bureaucrats possessed farreaching adjudicatory powers, internet innovation, investment, and consumers will all suffer.7
More narrowly, the internet critical importance Judicial Watch and AEF
ability communicate with their members and provide content the public satisfaction
their nonprofit educational missions. the internet has evolved, have the commenters
ability produce media and communicate with their supporters new and innovative ways,
such live streaming video. These advances communications capabilities were made
possible because the government left the internet unregulated for years, allowing grow
and flourish. The new FCC net neutrality policies impose overly-restrictive federal prohibitions business and technology innovations internet network operators (comprising the core
the internet). These restrictions will turn deprive internet content providers like Judicial
Watch and AEF (the edge the network) the benefits future innovations that would
allow them more effectively deliver information and news their subscribers whatever
Id. After Republicans gained their Senate majority, Mr. Obama took number actions around Congress,
including unilateral move ease immigration rules. Senior aides also began looking for issues that would help
define the president legacy. Net neutrality seemed like good fit. available https://www.wsj.com/articles/
how-white-house-thwarted-fcc-chief-on-internet-rules-1423097522.
See Comcast Corp. Letter FCC Wireline Competition Bureau, Docket No. 09-191 (Nov. 30, 2010)
(discussing Level attempts threaten Comcast into lowering its peering rates for Netflix traffic issuing
press release claiming the rates violate open internet principles), available https://ecfsapi.fcc.gov/file/
7020921811.pdf.
Gerald Faulhaber, THE ECONOMICS NETWORK NEUTRALITY, Regulation, Winter 2011-2012 Regulation opens wide opportunities for regulatory rent-seeking, which firms seek market advantage via
regulation, rather than via serving customers well. When regulators are open for business, firms understand that
pleasing manipulating the regulators far more important than innovating, investing, and pleasing customers.
precisely because regulators have not been open for business the Internet that has been such innovative and
successful enterprise. (quoting Gerald Faulhaber and Christiaan Hogendorn, THE MARKET STRUCTURE
BROADBAND TELECOMMUNICATIONS, Journal Industrial Economics, Vol. 48, No. (2000)), available
https://object.cato.org/sites/cato.org/files/serials/files/regulation/2012/6/v34n4-4.pdf.
those innovations may be.8 Policies which reduce eliminate incentives for broadband
providers expand network capacity make more efficient use existing capacity will
inevitably lead slowing internet network capacity growth, which will turn delay
foreclose the development more bandwidth-intensive applications and content delivery
innovations.9 the current net neutrality rules had been place years ago, today Judicial
Watch and AEF would likely communicating with their supporters via plain text Usenet
messages. The depth and breadth the commenters communications with their members and
supporters would have been dramatically reduced. The existing net neutrality rules will therefore
injure the commenters and similar organizations, and the Commission should repeal them.
Summary Argument
Judicial Watch and AEF urge the Commission repeal the existing open internet
regulations and reclassify broadband internet information service. There almost
controversy that the internet should remain open, and virtually one any political stripe
opposes the idea that everyone should able access the entire internet, that everyone
should able use the internet communicate freely with others. Neither the government nor
any private company should prevent such openness, and this commonly held value should
protected.
Hal Singer, THREE WAYS THE FCC OPEN INTERNET ORDER WILL HARM INNOVATION, Progressive Policy
Institute, (May 2015) Other real-time applications include high-definition voice service and
holographic video streaming used for virtual reality, both which require prioritization ISPs... ISPs should
able negotiate reasonable compensation for such service... available http://www.progressivepolicy.org/wpcontent/uploads/2015/05/2015.05-Singer_Three-Ways-the-FCCs-Open-Internet-Order-Will-Harm-Innovation.pdf.
Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009) The Internet could evolve require stricter technical protocols for levels integrity and
performance needed for delivery high speed and real-time applications like online gaming, and its still mostly
science-fiction cousin, virtual reality. Rather than the FCC dictating Internet that serves few specific functions...
the FCC rules should allow network operators accommodate the kinds functions next generation Internet
users may want. available https://www.americanbar.org/content/dam/aba/publishing/communications_
lawyer/fedeli.authcheckdam.pdf.
Nevertheless, the prior FCC was not content merely protect internet openness. Rather
than adopt simple rules towards that end, the prior FCC adopted raft economic regulations
that serve little purpose other than bring thriving and successful industry heel, placing
under the control federal regulators. This was simple power grab, taking decisionmaking
authority away from entrepreneurial businesses and putting the hands the FCC.
allowed stand, these economic regulations will tremendous harm rapidly evolving
internet economy that continues grow and expand.
The current FCC must separate preserving the open nature the internet which what usually mean net neutrality from economic regulation entire industry, which
what the last Commission did the guise net neutrality. The prior Commission internet
regulations and statutory reclassification broadband providers breaks one the cardinal rules market regulation: not regulate solve problem that can better solved the normal
operation market pressures and demands. Allowing commercial market flourish between
broadband providers and edge providers internet content and applications allows all parties reach reasonable agreements for the delivery traffic that they can both give their
customers exactly what they want fast and immediate access any content their choosing.
Preserving openness does not require banning such market activity, nor does require strict
government control over network management practices. Federal and state antitrust regulators
already provide backstop markets begin fail, and the federal government should not further
inject itself way that undermines successful industry. new regulations are needed, and
nothing more than light rules should even considered.
Argument Classifying Broadband Internet Public Utility Telephone Service
Regulatory and Public Policy Disaster
The Title Order was both failure technology policy well failure
economic policy.10 Even ignoring the technical question information storage and retrieval,
everything about the modern broadband internet dictates that the better reading Section 153
that broadband properly treated lightly regulated Title information service, not Title
public utility telephone service.11
The modern internet economy does not closely resemble that the telephone network,
which was never used for both one-to-one communications and mass media communications
this scale. The economics networks that primarily serve one-to-one purpose and those that
also serve one-to-many model are dramatically different.12 Indeed, the internet variable-use
nature what makes such priceless economic asset, services and applications can start out
with small audience and then can scale become global. This also what makes the internet
invaluable civic life the most participatory form mass speech yet developed. Any
regulations for the internet must therefore flexible enough accommodate all its distinct uses
without damaging any part it. Given these dramatic differences between the internet and the
telephone network, questionable that Congress would have intended the internet fall into
the definition telecommunications service for regulatory purposes.
Similarly, the broad question what will best preserve the virtuous circle internet
innovation and investment heavy regulation light regulation one the prior FCC answered Protecting and Promoting the Open Internet, FCC Rcd. 5601 (2015) Title Order U.S.C. 153(24) and (53).
See Christopher Yoo, NETWORK NEUTRALITY INTERNET INNOVATION?, Regulation, Vol. 33, No. pp. 28,
(Spring 2010) (discussing dissimilar network economic effects telephone networks and broadcast television
networks), available https://object.cato.org/sites/cato.org/files/serials/files/regulation/2010/2/regv33n1-6.pdf.
Reno ACLU, 521 U.S. 844, 863 (1997).
wrongly.14 Whatever legal flexibility the Commission had regulate broadband providers
Title common carriers, the policy doing was flawed and harmful. natural experiment
from history demonstrates this. The ATT phone monopoly prior deregulation showed few
technological innovations the network itself for fifty years, and even caused the delay fiber
optic cable deployment.15 Conversely, the innovation the past years under deregulated
internet regime has been enormous. you want kill innovation industry, regulate heavily. The prior FCC Title
Order will turn the once vibrant broadband internet economy into the public electric utility
water works systems reliable government granted monopoly with facilities and capabilities
frozen time. may appealing for some believe that regulating broadband just like
regulate electricity and water good idea; after all, people electricity and water usually work
and the rates are reasonable. The difference explained more thoroughly section below the sine qua non the modern internet constant innovation and improvement, and the
need for increased bandwidth and capacity infrastructure must continue rapidly expand the
innovation continue.
The FCC should find that broadband internet services are best classified information
services governed under Title the Communications Act.16 The FCC already has the authority
Verizon FCC, 740 F.3d 623, 649 (D.C. Cir. 2014) (broadband investment and innovation would benefit both
from the preservation the virtuous circle innovation created the Internet openness and the increased
certainty that openness engendered the Commission rules. see also Chris Fedeli, CARPOOL LANES THE
INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009) (network management
innovations encourage edge innovations the same way that fast-track highway lane technology created the
virtuous circle that ultimately increased carpooling available https://www.americanbar.org/
content/dam/aba/publishing/communications_lawyer/fedeli.authcheckdam.pdf.
Kenneth Labich and Kate Ballen, Was Breaking ATT Good Idea?, Fortune Magazine, Jan. 1989 Divestiture has clearly accelerated the pace some crucial new communications developments. One major
example: fiber optics available http://archive.fortune.com/magazines/fortune/fortune_archive/1989/01/02/
71446/index.htm.
Nat Cable Telecomms. Ass Brand Internet Servs., 545 U.S. 967, 984-985 (2005). lightly regulate under Title chooses.17 While was once considered beneficial for
the FCC fill the gaps the statute encourage technological growth,18 the Title Order
demonstrates that abuse this agency power carries equal amounts economic danger. The FCC Public Utility Regulations Risk Enormous Harm the Internet addition being wrong matter statutory interpretation, the public utility
classification and its associated common carrier regulations are virtually certain disaster
for the internet the long run. The prioritization ban and the general internet conduct standard particular will reduce future internet innovation and investment.
The FCC decision outlaw the market for internet traffic prioritization will inflict
considerable long-term damage not repealed. The paid prioritization ban crucially undermines
potential future investment the core the network, which happens essential
innovation the edges. Similarly, limiting network management with its restrictive internet
conduct rule, the Title Order will further freeze innovation both the core and the edge the
internet network despite attempting freeze innovation the core only.
These regulations have already reduced infrastructure investment the mere two years
they have been the books (while federal appeal was pending). Even notwithstanding this
reduction, the better question whether network investment would have been much greater
since 2015 absent the new regulations. virtual certainty the 2015 regulations will reduce
investment far more the future should they remain law. Indeed, bare minimum analysis
shows that the regulations are overwhelmingly likely harm over the long run given what
know about network technology and network economics. All this sufficient support
Verizon FCC, 740 F.3d 623, 649 (D.C. Cir. 2014).
Wold Commc ns, Inc. FCC, F.2d 1465, 1468 (1984) fast-moving field technology... reviewing
court owes particular deference the expert administrative agency policy judgments and predictions...
repeal the regulations along with reversal the common carrier classification.19 While the
commenters propose that all the 2015 regulations repealed, the ban paid prioritization
and the unreasonable interference internet conduct standard are especially pernicious and
deserve separate discussions. The Prioritization Ban Will Slow Infrastructure Investment and Raise
Consumer Costs
The prioritization ban prevents broadband providers and edge providers from entering
business arrangements speed delivery traffic. This rule prevents broadband providers from
recovering the costs network expansion from those web services putting the greatest demand the network for that expansion.20 The ban will result less capital for network capacity
expansion, which means slower network expansions, which turn will result longer wait
times before the next innovative, bandwidth-intensive edge application can reach market scale.
Far from preserving the virtuous circle innovation, the prioritization ban therefore will send
the internet into downward spiral. adopting this rule, the FCC failed seriously evaluate the importance two-sided
market for broadband internet, which draw vastly more capital into the broadband economy
FCC Fox Stations, Inc., 556 U.S. 502, 513, 514 (2009) (agency must examine the relevant data and
articulate satisfactory explanation for its action, but there basis the Administrative Procedure Act
[Supreme Court] opinions for requirement that all agency change [to prior regulations] subjected more
searching review... see also Motor Vehicle Mfr. Ass State Farm Mut. Auto Ins. Co., 463 U.S. 29, (1983)
(agency must only consider Congressional intent and all the important aspects the problem, base its decision
evidence, and apply its expertise withstand review).
Christopher Yoo, NETWORK NEUTRALITY INTERNET INNOVATION?, Regulation, Vol. 33, No. pp. 29,
(Spring 2010) The two-sided market analysis reveals the potential drawbacks preventing network providers
from charging differential prices. general matter, pricing flexibility makes easier for network providers
recover the costs building additional bandwidth. ... Conversely, preventing network providers from exercising
pricing flexibility with respect content and application providers would simply increase the proportion the
network costs that providers must recover directly from end users. This simultaneously raises the prices paid
consumers and decreases the likelihood that the capital improvements will ever built. available
https://object.cato.org/sites/cato.org/files/serials/files/regulation/2010/2/regv33n1-6.pdf.
through ordinary market pressures and self-interested behavior.21 Furthermore, the Commission
did not seriously consider whether its fears anticompetitive conduct outweighed the clear
economic harm this regulation.22
Internet users want and need access certain internet services fast, and services that
become popular will great demand. continue grow the internet, broadband providers
must able adapt consumer demand drawing capital expand capacity when
necessary, not only accommodate the last set last great applications but also
accommodate the next set new, innovative applications well.
Outlawing market traffic delivery speed also kills incentives for edge providers
develop further technological innovations their own:
[P]ricing for extra speed would incentivize edge providers innovate
technologies that enable their material travel faster (or reduce latency jitter)
even the absence improved ISP technology.... Thus paid prioritization would
yield finely tuned incentives for innovation exactly where needed relieve
network congestion. These innovations could improve the experience for users,
driving demand and therefore investment.23 imposing its prioritization ban, the FCC failed sufficiently analyze these issues, and failed analyze how two-sided market can serve even better price control system than federal
Justin (Gus) Hurwitz, TWO SIDES THE INTERNET TWO-SIDEDNESS: CONSUMER WELFARE PERSPECTIVE,
Perspectives from FSF Scholars, Vol. No. (Sept. 30, 2013) there something missing from the [net
neutrality] discussion far: why care market two-sided? Because most two-sided markets, the
purveyor the intermediary goods that the two sides are consuming that is, the owner the nightclub, the HMO
provider, the developer, the broadband ISP sets different prices for each side the market order
maximize the value the market. available http://freestatefoundation.org/images/Two_Sides_of_the_
Internet_s_Two-Sidedness_-_A_Consumer_Welfare_Perspective_092713.pdf
United States Telecom Ass FCC, 825 F.3d 674, 766 (D.C. Cir. 2016) (Williams, dissenting) the
Commission adopted flat prohibition [on prioritization], paying attention circumstances under which specific
varieties paid prioritization would (again, assuming market power) adversely favorably affect the value the
internet all users. the absence such evaluation, the Order scathing terms about paid prioritization, used justification for the otherwise unexplained switch interpretation 201(b), fall flat.
United States Telecom Ass FCC, 825 F.3d 763 (Williams, dissenting).
regulations.24 Allowing two-sided market flourish more effective than regulation for
keeping consumer prices low even true monopoly provider cases, which broadband internet
likely not, given the ubiquity wireless broadband.25 The Internet Conduct Standard for Network Management Will
Undermine Innovation the Network Core, Which Turn Will Thwart
Innovation the Edge
The FCC should eliminate its catchall internet conduct regulation. begin with, this
rule just roving license for the Commission retroactively declare any network management
technology practice illegal along with almost any other business practice broadband
provider. Any attempt enforcement such rule arbitrary-and-capricious lawsuit
waiting happen.26
The internet conduct rule chills broadband providers ability adopt new network
management policies, which virtually ensures that edge providers will use network bandwidth
less efficiently. gives the FCC flexible standard judge what and not reasonable
network management case-by-case basis, which means innovation the core the network
grinds halt and the internet becomes mother may economy the center the network.
This turn means bandwidth efficiencies are created more slowly, and therefore various edge
Justin (Gus) Hurwitz, TWO SIDES THE INTERNET TWO-SIDEDNESS: CONSUMER WELFARE PERSPECTIVE,
Perspectives from FSF Scholars, Vol. No. (Sept. 30, 2013) ...the Open Internet rules, preventing Verizon
from charging firms like Google and Netflix for access its network, prevent this market from behaving like twosided market.... [T]here little reason believe priori that the Open Internet rules prohibition charging
content providers optimal. the contrary, the economic literature suggests that the Open Internet rules can have negative effect the value created the Internet, and that allowing broadband ISPs charge content providers
can benefit consumers and increase infrastructure investment. available http://freestatefoundation.org/images/
Two_Sides_of_the_Internet_s_Two-Sidedness_-_A_Consumer_Welfare_Perspective_092713.pdf
See e.g. Bernie Arnason, Will Enable Wireless Replacement Home Broadband and Disrupt FTTH?,
Telecompetitor, May 26, 2016 This latest wireless generation promises broadband speeds that are comparable
existing FTTH and cable broadband services available http://www.telecompetitor.com/will-5g-enablewireless-replacement-home-broadband-disrupt-ftth/.
See e.g. Comcast Corp. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010).
providers must wait longer before capitalizing increased bandwidth availability reach
customers. Again, the circle innovation and investment slowly grinds halt.
Similarly, placing prior restraints broadband providers technological innovation will
also dramatically reduce incentives for the edge providers themselves develop technologies
for efficient transmission data.27 Preserving the cycle internet growth and investment
requires innovation both the edge and the core the network. the core remains
unchanging public utility where network management innovations are subject federal
approval, the edge should not bother developing the next generation more bandwidthintensive applications because the core will never able transmit them effectively nor will
broadband providers have any incentive make the needed improvements. this regard, the
2015 Title Order ultimately commits the same mistake both the 2010 Open Internet Order28
and the 2008 Network Management Order.29 The main difference was that 2015, the FCC was
willing even more damage the internet economy with extensive public utility regulations
that ultimately achieve the same result throttling innovation the network core.30 New Regulations are Unnecessary, but Minimum Only Limited, Light-Touch Net
Neutrality Rules Should Even Considered
Commenters Judicial Watch and the Allied Educational Foundation propose that the FCC
repeal all its Part regulations, especially the rules governing blocking, throttling, paid
Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer
31-32 (Jul. 2009) allowing such practices, network operators can increase speed traffic delivery based
how much effort the traffic itself... makes ease congestion through steps they can take little cost. This
highly efficient network management principle and applies fully the question Internet network management.
available https://www.americanbar.org/content/dam/aba/publishing/communications_lawyer/fedeli.
authcheckdam.pdf. Preserving the Open Internet, FCC Rcd. 17905 (2010). Reasonable Network Management al., FCC Rcd. 13028 (2008).
See Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009) Under the BitTorrent Order regime, before traffic can managed any way different from the
TCP/IP-based rules the Commission must approve it, and anything that not explicitly approved deemed
prohibited. available https://www.americanbar.org/content/dam/aba/publishing/communications_lawyer/fedeli.
authcheckdam.pdf.
prioritization, the internet conduct standard, formal complaints, and advisory opinions.31 These
regulations present the wrong framework for encouraging broadband deployment and ensuring
internet openness. Reasonable rules the road for the internet not require the FCC turn
itself into Internet Court, and nor should the FCC become the network management review
board.
The greatest stated fears advocates for economic regulations regulations which far
beyond simple net neutrality open internet protections are already addressed antitrust
law. Indeed, even most the potential imagined future violations net neutrality principles
are already illegal under antitrust laws, including acts like website blocking,32 charging
monopoly rents,33 collusion between industry players,34 and unfair competition.35 The existing
antitrust laws can already enforced against broadband providers the Justice Department,
the Federal Trade Commission, and the State Attorneys General.36 There are plenty C.F.R. 8.1 seq.
Hon. Maureen Ohlhausen, ANTITRUST OVER NET NEUTRALITY: WHY SHOULD TAKE COMPETITION
BROADBAND SERIOUSLY, Colo. Tech. LJ, Vol. 15.1, 145 (2016) the Sherman Act opposes conduct that,
restricting competition, denies consumers any benefits that they desire and would otherwise obtain. available
https://www.ftc.gov/system/files/documents/public_statements/1054963/ohlhausen_cotechjournal.pdf.
Berkey Photo, Inc. Eastman Kodak Co., 603 F.2d 263, 272-73 (2d Cir. 1979).
Robert Lande and Howard Marvel, THE THREE TYPES COLLUSION: FIXING PRICES, RIVALS, AND RULES
(2000), Wisconsin Law Review, Vol. 2000, No. 941, 944, available http://www.antitrustinstitute.org/files/
112.pdf.
Alden Abbott, YOU DON NEED THE FCC: HOW THE FTC CAN SUCCESSFULLY POLICE BROADBAND-RELATED
INTERNET ABUSES, Heritage Legal Memorandum No. 154 (May 20, 2015), available http://www.heritage.org/
government-regulation/report/you-dont-need-the-fcc-how-the-ftc-can-successfully-police-broadband.
William Kovacic, THE DIGITAL BROADBAND MIGRATION AND THE FEDERAL TRADE COMMISSION: BUILDING
THE COMPETITION AND CONSUMER PROTECTION AGENCY THE FUTURE, Telecomm. High Tech.
(2010) (state attorneys general could coordinate with federal antitrust agencies divide responsibility for
policing internet market power abuses), available https://www.ftc.gov/sites/default/files/documents/
public_statements/digital-broadband-migration-and-federal-trade-commission-building-competition-andconsumer/2010digital-broadband.pdf
antitrust cops the beat address abuses market power, and there demonstrated need add the FCC.37 the Commission does decide repeal and replace issuing new regulations, those
rules must non-intrusive, and must not result economic harm like the prior rules. The
Commission has the power regulate lightly under Title the Communications Act.38 While
there practical policy need for such rules, the Commission may wish end the intractable
nature the net neutrality debate and assuage the public fears corporate conspiracies and
censorship. the Commission embarks this path, the commenters urge the FCC only
adopt simple and non-intrusive regulations for the sake allaying fears that broadband
providers will discriminate against certain political views, that they will conspire with edge
providers prevent future internet startups from competing with Google and Facebook (or their
own vertical services).
Light-touch regulations have been specialty the FCC for years until the recent era,
and duplicating those successes should not difficult.39 For example, the FCC could adopt
streamlined version the blocking throttling rule, but only prohibiting anticompetitive
viewpoint-discriminatory blocking throttling from its uncurated complete internet service
offering. Similarly, the definition reasonable network management could revised
exclude only practices with anticompetitive viewpoint-discriminatory purpose, otherwise
United States Telecom Ass FCC, 825 F.3d 674, 765-766 (D.C. Cir. 2016) (Williams, dissenting) (citing
Department Justice conclusion that antitrust the task protecting consumers from vertical contracts that
threaten competition internet markets, and the Federal Trade Commission nuanced assessment analyzing
ISP incentives discriminate and not discriminate under conditions market power and varieties paid
prioritization, assessing their risks and benefits.
Verizon FCC, 740 F.3d 623, 649 (D.C. Cir. 2014); see also U.S.C 151, 1302 (mandates ensure
communications are available all, remove barriers infrastructure investment, and encourage broadband
deployment).
See Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer 29-31 (Jul. 2009) (discussing successful results FCC repeal service and usage restrictions for terrestrial
wireless and satellite spectrum licenses, leaving pragmatic rules place), available https://www.americanbar.org/
content/dam/aba/publishing/communications_lawyer/fedeli.authcheckdam.pdf.
allowing business considerations network management. This will allow broadband providers invoke safe harbor establishing and uniformly applying published, reasonable network
management rules for web traffic their networks. also removes the presumption that most
network management changes will made for nefarious, censorial, anticompetitive purposes, the previous FCC apparently believed.
Furthermore, rather than formal complaint proceedings for alleged unlawful blocking
throttling, the presumption should that technical issue causing the slowing nonappearance website not that political motives are play. facilitate this, the FCC could
appoint one more internet standards-setting organizations administrators resolve
blocking throttling disputes the first instance, the Commission already does the
wireless interference context with groups like the Enterprise Wireless Alliance APCO. With
the presumption that any alleged blocking throttling technical nature and will resolved
informally, the rule longer public utility command-and-control prohibition the kind
thrown out the Verizon court.40 This rule should eliminate the fear broadband companies
censoring political views.
Critics may object that any sound network management practices implemented for
business reasons (such improve service customers) could also cause some websites
load more slowly than others. While this true, there enormous difference between
broadband provider preventing customers from viewing the American Communist Party website
due political disagreement, and the American Communist Party livestream video
downloading slowing due broadband provider capitalist cost-based network management
Verizon FCC, 740 F.3d 651-658.
practices. The open internet means all should have the opportunity participate the
marketplace ideas, not that all should guaranteed equal success that market.
Another possible light-touch rule: require notice the FCC after broadband provider
ceases any offering complete internet service. While broadband provider should ever
have seek pre-approval stop offering that service, the FCC could require notice within
days after service stops. there evidence that the broadband provider decision was not
based high costs and low market demand, but rather was anticompetitive viewpointdiscriminatory purpose, the FCC could either initiate proceeding make referral the
appropriate antitrust enforcement authority. Even rule allowing the FCC order broadband
provider restore its complete internet service offering would likely withstand scrutiny without
the need invoke common carriage.41 While unlikely that any broadband provider will find
the market for complete internet service evaporating any time soon, such rule would eliminate
fears big broadband conspiring with big tech strangle the internet startup market.
Another example: the FCC could issue regulation stating that broadband provider
dedicates certain percentage its network capacity non-prioritized, equal-treatment
general web traffic, that provider deemed acting pro-competitively and consistently
with the principles net neutrality and the open internet. This kind guidance-oriented
regulation could alleviate fears that broadband providers might bandwidth-starve their complete
internet offering selectively charge high prioritization prices for reasons viewpoint
discrimination. Simultaneously, the rule will give broadband providers option minimize
their antitrust exposure across states. This will reduce both legal uncertainty for broadband
providers and uncertainty the marketplace for subscribers and edge providers, thereby
See e.g. Turner Broadcasting FCC, 520 U.S. 180 (1997) (Turner II).
preserving open internet while allowing broadband providers continue innovate and
experiment.
The point these examples illustrate that possible issue rules protecting
open internet without wreaking economic havoc and halting internet innovation. The
commenters reiterate that the open internet already adequately protected existing antitrust
law. The Commission should only issue rules doing will end the net neutrality debate and
associated legal proceedings until Congress acts. consensus harmless regulations
achievable, sparing the public another ten years litigation and rulemakings over net neutrality
may have value and itself.
Conclusion
For the foregoing reasons, the Commission should properly classify broadband internet information service and should repeal its existing net neutrality regulations.
Respectfully submitted, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
202-646-5172
Counsel for Judicial Watch, Inc. and the
Allied Educational Foundation
July 17, 2017